Whipple v. Boston & Me. R. R., 3084.

• Decision Date: 01 June 1939
• Docket Number: No. 3084.,3084.
• Citation: 7 A.2d 239
• Parties: WHIPPLE v. BOSTON & MAINE R. R.
• Court: New Hampshire Supreme Court

7 A.2d 239

WHIPPLE

v. BOSTON & MAINE R. R.

No. 3084.

Supreme Court of New Hampshire. Merrimack.

June 1, 1939.

[Copyrighted material omitted.]

Transferred from Superior Court, Merrimack County; Johnston, Judge.

Action on the case for negligence by Ruby H. Carbone Whipple, administratrix, against the Boston & Maine Railroad, for death of plaintiff's intestate, who was a guest in an automobile which was struck by defendant's train. Verdict for plaintiff for $10,000. Transferred upon defendant's exception.

Judgment on the verdict.

Case for negligently causing the death of plaintiff's intestate. Trial by jury. Verdict for the plaintiff in the sum of $10,000. The defendant's bill of exceptions was allowed by Johnston, J. The exceptions considered and the facts relating thereto are stated in the opinion.

A previous decision in the same case is reported under the name of Carbone v. B. & M. Railroad, 89 N.H. 12, 192 A. 858.

Robert W. Upton, Richard F. Upton, and John H. Sanders, all of Concord, for plaintiff.

Demond, Sulloway, Piper & Jones and James B. Godfrey, all of Concord, for defendant.

BRANCH, Justice.

The defendant's exceptions will be considered in the order in which they were discussed in its brief.

Defendant's exception to the denial of its motion to set aside the verdict "because the damages are excessive" appears to be without merit and is overruled. There was evidence that the plaintiff's decedent, George J. Carbone, was 31 years of age at the time he was killed; that he was a young man of good habits with a life expectancy of 33.68 years; that he was by occupation a taxicab driver and chauffeur; that during the years 1931 and 32 his earnings averaged between $25 and $30 a week when fully employed; that during May and June, 1933, he earned $50 per week for a period of seven consecutive weeks, and that at the time of his death he was earning $40 per week. In answer to the question, "what did he do with his earnings?" the plaintiff testified: "He always brought them home to me.

"Q. You used them for what? A. For the purpose of feeding and clothing the children and see they were well provided for.

"Q. That is, his earnings were used for the family? A. Yes, sir."

It therefore might be found that the decedent had a substantial earning capacity and a proven disposition to work and support his family whenever work was available. Under these circumstances it is difficult to imagine contravailing considerations which would compel the conclusion that, as a matter of law, the loss caused to his estate by his death was less than $10,000.

The fact upon which the defendant chiefly relies is that during the last two years of his life the decedent's family had received public relief. We are clearly of the opinion that the amount of money earned by him during the depths of a business depression is not to be accepted as the controlling index of his earning capacity and no legal ground is perceived for revising the jury's estimate of the amount of damage suffered by his estate through his death.

The foregoing conclusions also dispose of the defendant's exceptions to the denial of its requests numbered 40 and 41, both of which had reference to the fact that Carbone's family was on relief in 1932, 1933 and 1934. The defendant was not entitled, as a matter of law, to have this portion of the evidence upon the issue of damages emphasized by specific notice in the charge. Colby v. Lee, 83 N.H. 303, 307, 310, 142 A. 115, 688.

The automobile in which the decedent was riding was driven by one Dion. Subject to defendant's exception the plaintiff was permitted to introduce testimony as to Dion's custom and habit of using care when approaching a railroad crossing, as follows: "He always slowed down and stopped; that is, he slowed down, looked and listened." The defendant argues that "it conclusively appears that in the particular instance such custom was not observed" (Tucker v. Railroad, 73 N.H. 132, 59 A. 943, 944) and hence that the admission of this testimony was error. In making this argument the defendant necessarily attributes conclusive force to the testimony of its engineer, who testified that Dion's car approached the crossing at a speed of 45 miles per hour, which was not diminished before it reached the crossing. The credibility of testimony being for the jury, the defendant is, of course, in no position to insist that the testimony of its employee be taken at its face value and the foundation of its argument thus collapses. In accordance with our recent decision in Buxton v Langan, 3 A.2d 647, the testimony was properly admitted.

The defendant also excepted to the admission of the testimony of one Abbott, who testified as an expert regarding the distances within which the train in question could have been stopped at varying speeds. Before this testimony was received, defendant's counsel was permitted to cross-examine the witness as to his qualifications and he was questioned at great length in regard to his knowledge of the construction and operation of air brakes. At the close of this examination the court found him to be qualified and admitted the testimony above referred to. The question of the witness' qualification being one of fact for the trial court, it is sufficient to say that an examination of the testimony indicates ample evidence to support the finding of the court in the present instance. In tact, no controversy would probably have arisen were it not for the fact that the witness admitted upon cross-examination that when testifying upon a previous occasion in another case he had advanced an entirely different theory as to the principle upon which air brakes operate. The witness admitted that upon that occasion he "got mixed up" but stated that he had since made "quite an extensive study" of air brakes. He was not called primarily as an expert on the subject of air brakes, but as a civil engineer who had had long practical experience as an official of the New York Central Railroad in determining the causes of accidents and who had had occasion to observe the actual effect of air brakes in stopping trains. Under these circumstances his admission that upon a former occasion he gave erroneous testimony as to the principle upon which such brakes operate, did not compel the conclusion that his testimony would not aid the jury in its search for the truth in the present case. The defendant's exception to the admission of this testimony is therefore overruled.

During the argument of plaintiff's counsel to the jury, the following proceedings took place:

"Mr. Upton: We charge the defendant with negligence in failing to maintain a proper look-out as its train approached the crossing that night. We charge the defendant with negligence in failing to give suitable warning of the approach of the train that night. Again, we charge the defendant with negligence in operating its train at an excessive speed, and finally we charge the defendant with negligence in failing to have a crossing watchman there on that night. It is for you to say whether any or all of these charges are well founded. But I want to remind you in a case of this character if there were no evidence to establish the defendant's fault, it would be the duty of the Court to withdraw the case from you.

"Mr. Jones: Note an exception to that, if the Court please, it is absolutely improper and prejudicial.

"Court: Exception noted."

Obviously the defendant's exception was not taken in accordance with the procedure recommended in Tuttle v. Dodge, 80 N.H. 304, 116 A. 627, which requires an objection to the questioned argument and a definite ruling thereon by the trial court, to which exception may be taken by the party aggrieved. The present case exhibits a reversion to "the long-established erroneous practice here of claiming an exception without first objecting and obtaining a ruling from the presiding justice." Tuttle v. Dodge, supra, 80 N.H. page 312, 116 A. page 632. "No good reason appears for continuing such practice." (Ib.)

As clearly indicated in the opinion last referred to, the effect of a statement in argument which may be thought to endanger the fairness of the trial should forthwith be considered and, if necessary, remedied by an order of the trial court. The disturbing number of cases transferred upon exceptions of this character indicates the desirability, amounting almost to necessity, of adhering more closely to the proper procedure above referred to. The relaxation of the rule laid down in Tuttle v. Dodge, supra, which has been sanctioned by the subsequent decisions of this court (Salvas v. Cantin, 85 N.H. 489, 160 A. 727; State v. Wargo, 83 N.H. 532, 145 A. 456) has been productive of unfortunate results, and a more rigid insistence upon the proper procedure may be expected in the future. This does not mean that a ceremonial use of the words "I object" is required, but counsel must make it clear that they are addressing the court and asking for a ruling upon an ascertainable portion of the opponent's argument.

In the present instance no ruling of the court was requested or made. The only exception claimed by the defendant was to the language used by plaintiff's counsel, and this was the only exception "noted" in accordance with the order of the court. Such an exception raises no question of law for this court to pass upon.

In view of this conclusion some revision of the broad language used in Salvas v. Cantin, supra, and other recent cases may be necessary. In the case last cited it was said that "in the absence of differentiating circumstances, the allowance of an exception must be regarded as an implied sanction of the argument." [85 N.H. 489, 160 A. 729.] In that case there was a definite objection to the argument in question and a reason stated therefor. In other words, a request for a ruling by the trial court was made and the court's order "exception noted", was properly construed as a shorthand way of...